Citation Nr: 21022492 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-03 958 DATE: April 16, 2021 ORDER A 50 percent rating for major depressive disorder with alcohol dependence in remission and generalized anxiety disorder is granted throughout (from January 16, 2010 to November 7, 2015), subject to the regulations governing payment of monetary awards. FINDING OF FACT Throughout, the Veteran’s psychiatric disability is reasonably shown to have been manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas were not shown. CONCLUSION OF LAW A 50 percent (but no higher) rating is warranted for the Veteran’s major depressive disorder with alcohol dependence in remission and generalized anxiety disorder throughout (from January 16, 2010 to November 7, 2015). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 2009 to June 2009. This matter is before the Board on appeal from a May 2013 rating decision (that interpreted correspondence received January 16, 2010 as, in part, a claim for an increased rating for her service connected depressive disorder, and continued the 30 percent rating that had been assigned for the disability. In October 2018, the matter was remanded for additional development. A 50 percent rating is granted for major depressive disorder with alcohol dependence in remission and generalized anxiety disorder throughout prior to November 7, 2015. As was noted in the Board’s October 2018 remand, the Veteran had limited her appeal in this matter to the matter of the rating for her psychiatric disability prior 50 November 7, 2015. An October 2009 rating decision had granted service connection for a depressive disorder, rated 30 percent, effective June 16, 2009. The Veteran did not appeal that decision, or submit new and material evidence within the following year, and the decision became final. As the (acknowledged by the agency or original jurisdiction (AOJ)) claim for increase was received January 16, 2010, the period for consideration, which can extend once year prior, begins with the effective date of the grant of service connection. On April 2009 VA examination, the Veteran reported symptoms of depression, chronic sleep impairment, and irritability. She was assessed with mild symptoms overall, and based on this evidence, the October 2009 rating decision on appeal assigned an initial disability rating of 30 percent. In February 2011, the Veteran sought mental health treatment from VA. Her reported symptoms included: sad mood, dysphoria, frustration, low energy, difficulty sleeping, and reduced appetite. An adjustment disorder was diagnosed. On April 2011 VA examination, a mood disorder with depression and anxiety, and alcohol abuse were diagnosed. The Veteran reported that her father recently had a stroke and her mother was suffering from cancer. She reported severe sleep difficulty with onset of nightmares and night terrors that were general in nature and not specifically trauma related. She reported an increase in irritability and temper problems, with a recent physical fight with another woman. She reported having no friends outside her immediate family and children. She reported chronic feelings of depression with a lack of motivation, anhedonia, fatigue, and impaired libido, and increased anxiety. On mental status examination, the Veteran was described as appropriately dressed and groomed, open, and cooperative. She was found to have no impairment in communication and no unusual motor movements or dysfunctional behavior patterns (observed or reported). She was anxious and tearful throughout. Her abstract reasoning, concentration, and long and short-term memory were grossly within normal limits, and there was no indication of a thought disorder or paranoia. She reported ongoing thoughts of suicide, but denied any history of attempts or current risk for acting upon them out of concern for her family. The examiner opined that the Veteran’s drinking may contribute to her depression, but no other substance abuse or residual impairment was noted; and that being chronically anxious and tearful impacted on her ability to perform at school and left her increasingly socially isolated. On May 2011 VA treatment, the Veteran denied having suicidal ideation or passive thoughts of suicide. She related that her depression and anxiety caused her to self-medicate with alcohol. She reported a range of stressors for her behavior, including a custody battle with her ex-husband, and her mother’s cancer diagnosis. Treatment records around September 2011 indicate that the Veteran’s stressors continued to focus on her father, ex-boyfriend, and ex-husband. They note that a diagnosis of posttraumatic stress disorder (PTSD) in October 2011. In April 2012, she attended a 30-day inpatient alcohol abuse program, and maintained her sobriety following discharge. Throughout the program, she expressed resentment against her father for his behavior during her childhood, and frustrations with her boyfriend. She revealed a history of domestic violence in past relationships, and continued to deny suicidal and homicidal ideation. In July 2012, her diagnoses were noted as alcohol abuse in early remission and adjustment disorder. In March 2013, the diagnosis was alcohol dependence in full, sustained remission; she was getting married within a week, and expressed excitement to begin this new phase of her life. She reported obsessive compulsive behaviors that challenged her ability to unclutter her home. She was mildly anxious, and denied suicidal and homicidal ideation. In April 2013, treatment records note a diagnosis of major depressive disorder, but improvement in her mood and behaviors, as well as continued sobriety. She reported a tendency to hoard, and stated that her therapist believed her to have an obsessive compulsive disorder. VA treatment records in December 2014 note continued sobriety and stressors including an ongoing custody dispute with her ex-husband and the death of her mother. She endorsed having periodic depression, anxiety, anger, and frustration. She denied suicidal ideation, but noted that she had experienced it in the past. The diagnoses were alcohol use disorder in full, sustained remission, and adjustment disorder. In February 2015, her primary stressors reported were her husband’s behavior, including compulsive gambling, and her mother’s passing. In June 2015, her depression and anxiety were noted to be mild in nature; she had given birth to a daughter approximately two months prior. She denied suicidal or homicidal ideation. On November 7, 2015 VA examination, the diagnosis was major depressive disorder and alcohol dependence in remission. The Veteran reportedly could not function due to foot pain, and was unable to go to school functions due to her depression. She reported problems with getting overwhelmed, including simple tasks and tending to hygiene. She reported that she had friends but had problems socializing. She reported panic issues that caused her to fall to the ground in her last class in college. She had not worked in three years. Her reported symptoms included: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and disorientation as to time or place. Based on this evidence, a December 2015 rating decision granted the Veteran a 70 percent rating for major depressive disorder with alcohol dependence in remission, effective November 7, 2015, the date on which the medical evidence reflects increased symptomatology. In October 2018, the Board remanded the matter for a retrospective opinion addressing the nature and severity of the Veteran’s service-connected psychiatric disorder through the period on appeal, given the significant discrepancy between symptoms reported in the course of her VA treatment and the November 2015 VA examination, and the indications of other diagnoses (including PTSD related to childhood experiences and previous abusive relationships) complicating her mental health history. On August 2019 VA examination, it was noted that the Veteran’s diagnoses throughout the appeal period are major depressive disorder, recurrent, severe; alcohol use disorder in remission; and generalized anxiety disorder. The examiner opined that the generalized anxiety disorder is a progression of alcohol use disorder in remission because, prior to treatment, the alcohol was self-medication for the Veteran in terms of dealing with the depression and anxiety. The examiner noted that the records indicate diagnoses of depression, anxiety, and alcohol use in remission. It was noted that on April 2011 VA examination, the diagnoses included mood disorder not otherwise specified with depression and anxiety, and alcohol abuse, with a then-assigned GAF (Global Assessment of Functioning) score indicating that the depressive/anxiety symptoms were severe. The 2019 examiner noted the 2011 examiner’s report that the Veteran was having problems with drinking, work, school, and interpersonal relationships; and her anxiety had increased since the previous [2009] examination. The 2019 examiner noted records from various VA therapists during the appeal period noting depression, anxiety, and alcohol as problems, with discussions about the Veteran’s marriage choices, issues with relationships, problems at work, school, etc. The examiner noted that in those years, the Veteran was drinking and there are records from her April 2012 inpatient treatment program, with after care, groups on relapse, and relationship choices. The examiner noted that there were problems in school, failing classes, being overwhelmed, high degrees of anxiety, as well as suffering from chronic pain, stomach problems, and chronic headaches. The examiner opined that the records are inconsistent at times because of the Veteran’s basic emotional instability. The examiner opined that the Veteran’s psychiatric signs and symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Regarding occupational impairment, the examiner opined that during the period on appeal, the Veteran had impaired ability to follow through due to depression and anxiety, as well as problems with alcohol; impaired ability to get along with people, and problems in a work/school setting, indicated by her problems in school; impaired ability to finish tasks, concentrate, and motivate, due to depression/anxiety, and the anxiety led to issues with decision making, and problems with good judgment; impaired ability to handle negative feedback, due problems becoming overwhelmed; impaired ability to tune out external stimuli due to hypervigilance related to the anxiety, issues with anxiety and depression; impaired ability to solve problems due to overreaction and being overwhelmed, due to her depression/anxiety; impaired capacity to handle stress, problems with adaptability, being mentally rigid, and problems with time pressure, which also contributes to her problems with relationships/friendships. The examiner noted that the records show many diagnoses of adjustment disorder and explained that this is a time-limited diagnosis and must be replaced by another diagnosis. The examiner noted that the records list diagnoses of depression, anxiety, obsessive compulsive disorder, and alcohol use disorder. The examiner further noted that the November 2015 VA examination included diagnoses of major depression and alcohol use disorder, and the impairment level was severe but not total. The examiner opined that the 2015 VA examination should have also cited a diagnosis of generalized anxiety disorder, because the 2011 VA examiner wrote in his report that the mood disorder included both anxiety and depression. The 2019 examiner noted that all the records include alcohol use disorder as a problem. The examiner opined that the diagnosed obsessive-compulsive disorder can be part of a generalized anxiety disorder or depression, as the Veteran has been noted for not cleaning and caring for herself, and this is a sign of depression more than anything else. The examiner opined that the PTSD diagnosis noted in the treatment records does not seem to be related to military service, but to factors after the military when the Veteran chose abusive relationships and put herself at risk in other parts of her life. Additional VA treatment records throughout the appeal period show symptoms similar to those found on the examinations described above. The Veteran has also submitted lay statements describing her difficulties due to her psychiatric disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Major depressive disorder is rated under the General Rating Formula for Mental Disorders. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9434. The use of the phrase “such symptoms as”, followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Although a veteran’s symptoms are the “primary consideration” in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). There is no evidence in the record indicating that the Veteran’s service connected psychiatric disability had increased in severity during the period for evaluation prior to the January 16, 2010 date of receipt of her claim for increase. Thus, there is no basis for considering whether an increased staged rating may be warranted prior to January 16, 2010. Continuing with the analysis, the Board finds that, throughout the period on appeal, the psychiatric symptoms and functional impairment reported by the Veteran and noted by VA examiners and treatment providers (such as impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships) show, or at least approximate a level of functioning consistent with occupational and social impairment with reduced reliability and productivity. On April 2011 VA examination, she reported symptoms of a nature and severity similar to those she reported on treatment throughout between January 2010 and November 2015; progress notes reflect a level of functioning largely consistent throughout. The Board notes the August 2019 VA examiner’s opinion that the records are inconsistent at times because of the Veteran’s basic emotional instability, and the Board is inclined to agree; however, her overall level of functioning due to her psychiatric disability throughout appears to have been relatively consistent. Accordingly, the Board finds that the criteria for a 50 percent rating were met throughout, and that such rating is warranted throughout. The evidence does not show that symptoms that met (or approximated) the criteria for a 70 percent (or 100 percent) schedular rating were manifested prior to November 7, 2015. It is not shown that the Veteran had occupational and social impairment, with deficiencies in most areas. While on occasion she self-reported symptoms of greater severity, it is not shown by the record that such symptoms resulted in deficiencies in most areas. Significantly, maintained close family relations, and she even got married and had a child during the period on appeal. Her affect was full; she had intact attention and adequate memory; and her thought content included no cognitive defects. The August 2019 examiner opined that the Veteran’s psychiatric signs and symptoms resulted in occupational and social impairment with [only] occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The lay statements the Veteran submitted in support of this claim detail the types of problems that result from her psychiatric symptoms. The levels of functioning impairment described are encompassed by the criteria for the 50 percent rating assigned, and do not reflect deficiencies in most areas. Deficiencies in most areas simply are not shown, and prior to November 7, 2015, a rating in excess of 50 percent was not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.